Excerpt: ...can Arbitration Association, … or any other organization to conduct the arbitration subject to our approval.” Plaintiff contends that this sentence makes AAA one of her choices, and that 2WIN's approval is required only if she chooses an entity other than AAA. Defendant contends that the sentence gives it absolute veto power over any choice Plaintiff might make. The Court concludes that the sentence is ambiguous, and therefore should be const...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...lic interest.” The social media posts that underlie the causes of action in the cross-complaint were made” in a place open to the public or a public forum.” (Code Civ. Proc., § 425.16, subd. (e)(3)); see Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895-898 [finding the internet, generally, is a public forum]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 [finding an HOA newsletter was a public forum because it was “...

Excerpt: ...e and finds it needs additional information before it can enter an order that both adjudicates the MSJ/MSA and responds to the reference to a need for a state law determination that is contained in the remand order and related documents. The court therefore continues the MSJ/MSA. The court is aware that this continuance will interfere with the previously scheduled trial date, and the trial currently set for November 5, 2019, is hereby VACATED. Ea...

Excerpt: ...ition, he never explicitly testified that this alleged failure was the cause of plaintiffs' injuries. D&D's only other evidence on this point is a set of discovery responses by the Huff defendants, but D&D may not use discovery responses by the Huff defendants against plaintiffs on this motion. (Code Civ. Proc., § 2030.410.) The court also questions the usefulness of discovery responses that are made in relevant part on information and belief. (...

Excerpt: ...to the well. “While the Court may interpret the terms of the parties' settlement agreement, ‘nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' ” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.) In this case, the language of the settlement agreement is at least somewhat ambiguous as to wh...

Excerpt: ...ot have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christopher...

Excerpt: ... not have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christoph...

Excerpt: ...ust that Dabblicious may have breached oral agreements, but also that it beached the contract itself by failing to conduct batch testing and allow remediation as allegedly required by industry standards. Dabblicious's attack on the third cause of action for fraud fails because, although JDI did not provide the name of the employee who met with its representative to discuss the processing agreement, it gave a month, year and location for the meeti...

Excerpt: ...th regard to the alleged existence of a dangerous condition at the subject intersection. Specifically, Plaintiffs have demonstrated material disputes of fact concerning, at a minimum, Defendant's Separate Statement of Undisputed Material Facts 3, 8, and 9. For example, the Court finds that factual issues exist as to whether the traffic controls in place at the intersection at the time of the accident were out of compliance with applicable regulat...

Excerpt: ...LC has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Defendant shall provide answers, without objection, within 14 days of service of notice of entry of the order. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the above-described discovery requests. (Code Civ. Proc. �...

Excerpt: ...n this case. No declaration of any kind accompanies the motion, which does not contain the information that was supposed to be included in the declaration. The court is therefore missing facts essential to its determining the motion. In addition, the court agrees with the opposition that plaintiff has failed to articulate a viable theory of damages to support a cause of action for either trespass or conversion. ...

Excerpt: ..., and plaintiffs did not need to meet and confer about the responses before filing this motion. (Cf. Code Civ. Proc., § 2031.300[no meet and confer needed if no response] with Code Civ. Proc., § 2031.310, subd. (b)(2) [meet and confer declaration required for motion to compel further responses to discovery].) Because defendant is obligated to provide responses that are as “as complete and straightforward as the information reasonably availabl...

Excerpt: ...Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment. . .”].) Here, plaintiff argues Labor Code section 3601 cannot bar his claim for negligence ...

Excerpt: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ...e and import of federal preemption. Federal preemption, contrary to Defendant's assertion, is not merely a sub-species of “choice of law.” To the contrary, it goes to a trial court's fundamental subject matter jurisdiction, i.e., where federal law preempts state law it is not simply a question of which law one “chooses” to employ; it is instead a binary mandate that state law be disregarded in favor of federal law by virtue of the Suprema...

Excerpt: ...sing statement and the referenced declarations and supporting exhibits. However, Defendants' failure in the first instance to supply sufficient evidence to negate the existence of a triable issue regarding the third cause of action for fraudulent inducement/concealment obviates further consideration of the evidentiary objections by either party. In each case, Defendants' proffered “fact” consists instead of a litany of conclusory and conteste...

Excerpt: ...ective Order to Modify the Subpoenas to: 1. Memorial Medical Center, 2. Memorial Medical Center/Billing Dept., 3. Memorial Medical/Radiology Dept., 4. Sutter Physical Services/Recovery Dept. TPL Unit, and Request for Sanctions in the amount of $1,810.00 against defendants and its attorney of record; c) Plaintiffs' Motion to Quash Defendant's Subpoenas for Medical Records; or in the Alternative for a Protective Order to Modify the Subpoenas to: 1....

Excerpt: ...bility theory. (Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 617; La Vista Cemetery Assoc. v. Am. Sav. & Loan Ass'n (1970) 12 Cal.App.3d 365, 369.) The same holds true for Plaintiff's “aiding and abetting” theory. (Casey v. U.S. Bank Nat'l Ass'n (2005) 127 Cal.App.4th 1138, 1145.) The Third Cause of Action, as amended, fails to allege and plead with particularity the facts required for a conspiracy theory for the reasons set forth in De...

Excerpt: ...523-524; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238 [reasonableness of the misconception and justifiability of the failure to determine the correct facts or law are discretionary determinations for the trial court].) Acting pro se, moving party initiated this action by filing one suit and naming each of the defendants independently. His testimony indicated an awareness of the defendant wi...

Excerpt: ...and analogous to those of section 473(b). (Mannino, supra, 142 Cal.App.3d at 779.) Where, as here, the responsibility for the waiver is solely attributable to the attorneys, the mandatory relief provisions, by analogy, strongly suggests relief should be granted based on the remedial purposes of the statutes in question. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1228.) The Court finds that timely supplemental responses were made by moving party...

Excerpt: ...s stated, or which could be stated” and the voluntary dismissal with prejudice of Plaintiff's Complaint. Unlike the cases cited by both parties, Defendant's statutory offer contained no exemplar release or any express mention of the terms. As such, it is ambiguous as to any limitation of the “could be stated” claims to those arising out of the claim or claims actually raised in the case at bar. A section 998 offer must be reasonably certain...

Excerpt: ...or the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of th...

Excerpt: ...and/or unreasonable, such that the burden shifts to Plaintiff to show that the items charged were for matters necessarily relevant and material to the issues involved in the action. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyota Motor Sales, U.S....

Excerpt: ...on Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Demurrer to Plaintiff's First Amended Complaint The Court grants Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Request for Judicial Notice. Evidence Code § 452(h). Judicial Notice is taken of Defendants' Exhibit A. The court sustains Defendants Southern California Permanete Medical Gro...

Excerpt: ... notice of its preparation by the reporter from the raw shorthand marks, and arguably not until signed and/or certified as such by the reporter itself. The intended use of the transcript is for trial and the reporter's sealing and certification are part and parcel of use and admiss<005700030049004c005100 47005600030057004b00480003> motion timely as the deposition was re-noticed, obligating objections to have been served upon such re-noticing, abs...

Excerpt: ... party's notice of intent are either not authorized statutory causes for new trial nor coherently related by moving party to an authorized statutory cause, or else moving party did not address or support such non-statutory causes in moving party's memorandum and affidavits. (Code Civ. Proc. § 659(b) [new trial motion limited to statutory grounds in notice of intent]; Code Civ. Proc. § 659a [supporting brief and affidavits required after filing ...

Excerpt: ...eking relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G, § 5:401.) The Court further finds that relief from entry of default will result in no demonstrable prejudice to Plaintiff. (Elston, supra, 38 Cal.3d at p. 233; Fasuyi, supra, 167 Cal.App.4th at p. 696 [“very slight evidence” required to set as...

Excerpt: ...the causes of action set forth in Plaintiff's Complaint by producing evidence of each element of the respective causes of action asserted therein. (Code Civ. Proc. §437c(p)(1).) Therefore, Plaintiff is entitled to judgment as a matter of law. The Court notes that Plaintiff submitted a proposed order which includes a provision for awarding costs. However, no Memorandum of Costs or other description of the claimed costs has been filed to date. Mor...

Excerpt: ...th the Court's Minute Order of December 19, 2019, which did not confirm the tentative ruling but instead set the matter for contested long-cause hearing which has yet to occur. Consequently, moving party's motion to compel response to the subject discovery is hereby GRANTED. Opposing party shall serve complete, verified responses without objection within fifteen (15) days of this Order. That said, moving party does not dispute that the opposing p...

Excerpt: ...present hearing. The Court considers that rejection on this purely procedural basis would be a substantial waste of judicial resources. Even worse, denial for this reason would simply result in additional subpoenas for the identical records being directed to the actual custodians, the most important of whom are in fact under the auspices of Defendant County, whose counsel would then interpose the exact evidentiary privilege raised in this proceed...

Excerpt: ...nable person on inquiry notice that EMC's diagnosis may have been incorrect. (See, e.g., Rose v. Fife (1989) 207 Cal.App.3d 760, 768–769.) All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important” ob...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...ition fees, or $4,328.10 * All of the mediation fees, or $2,925, because these costs do not appear “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd.(c)(2).) The court finds Borra's November 7, 2018 offer under section 998 was timely because subdivision (b)(3) of section 998 states: “A trial shall be deemed to actually commence at the beg...

Excerpt: ...llful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Plaintiff is to appear to update the court on his efforts to comply with his discovery obligations. The court grants the request for judicial notice of the complaint, minute orders dated August 23, 2018 and September 10, 2018, defendan...

Excerpt: ... admission numbers 23, 37 and 38, especially when the court considers the definition of, “YOU,” that Plaintiff used in the discovery requests, cannot be answered with enough accuracy to justify subjecting the Souzas to cost of proof sanctions should they decline to admit an act of which they may be unaware. Similarly, form interrogatory numbers 9.1 and 9.2 ask the Souzas to respond to a multitude of allegations, over many years, involving num...

Excerpt: ...r[s embraced by requests for admission asking him to admit he caused damage to defendant's property]” (Code Civ. Proc., § 2033.420, sub. (b)(3)), since the jury found plaintiff had been negligent but no causation was present. In addition, even if the evidence shows plaintiff should have admitted that he broke and/or removed from the ground some of defendant's vines, the court finds these particular admissions were “of no substantial importan...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ...he trust in Santa Clara County by virtue of his June 2016 “Petition for Settlement of Final Account” filed in Case No. 1-15-PR-177570; and the fact that Ms. Webb in her capacity as the current successor co-trustee plans to continue administration of the trust in Santa Clara County Case No. 1-15-PR-177570 by preparing an additional accounting of the trust and filing it in Santa Clara County. The motion to dismiss the petition is DENIED. Additi...

Excerpt: ...If the parties, through counsel, are unable to agree on 3 potential appointees, then each party shall separately submit 2 such recommendations. Such recommendations for potential appointees, together with a statement of each individual's qualifications, shall be submitted to the Court within 20 days. b) Defendant's Motion for Stay of Civil Proceedings – GRANTED, in part. The Court has considered the nature and extent of the competing interests ...

Excerpt: ...of $383 and Plaintiff has not submitted a cost bill or otherwise substantiated such items by declaration in connection with the motion. Therefore, Plaintiff's counsel shall submit a revised form of order and judgment without reference to the specific amount of the claimed costs. Plaintiff may pursue the recovery of same through the statutory procedures for submission of a cost bill. ...

Excerpt: ...er, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $360 against Plaintiff and her counsel herein, to be paid to Plaintiff's counsel within 14 days. (Code Civ. Proc. §§2030.290(c), 2023.010, 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) b) Plaintiff's Motion to Compel Responses to Demand for Production of Documents and Things and Request for Monetary Sanctions – GRANTED, and unopposed; The Cour...

Excerpt: ... and that Nichols has failed to meet his burden in opposition. 1. First cause of action for injunctive relief “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Because all causes of action fail as described below, there is no valid claim on which the base an injunction. 1. Second cause of action for inverse condemnation The first amended complaint...

Excerpt: ...'s alternative arguments do not provide sufficient grounds for granting the motion. Leave of court is not required before filing an amendment pursuant to Code Civ. Proc. §474 in Stanislaus County. Under the circumstances, Defendant has not demonstrated sufficient prejudice to justify denial of Plaintiffs' ability to pursue their cause of action against Mr. Bauman on the basis of delay. ...

Excerpt: ... set forth appropriate material facts and states only allegations and legal conclusions, which are insufficient to support summary adjudication. Moreover, the Separate Statement fails to demonstrate the absence of material factual issues bearing on the existence of a contractual relationship between the parties. As to the Third Cause of Action for Breach of Fiduciary Duty, the Court finds that Defendants, as the moving parties, have met the burde...

Excerpt: ...laintiff's counsel. Under the circumstances, the Court finds that all matters currently on calendar for August 10, 2018 shall be continued to October 16, 2018. In order for Defendant's motion to be heard, however, proper service must be accomplished and proof service filed with the Court. (Code Civ. Proc. §1005; Cal. Rules of Ct., rules 1.21 and 3.1300.) ...